law essay

the seperation of powers

Published: 23, March 2015

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The concept of separation of powers was first introduced by Montesquieu (1689-1755), a French philosopher and author, in his book 'Spirit of the Laws' (Esprit Des Lois, 1748). This book was written based on his observation while visiting England in comparison to what was happening in France at that time.

Separation of Power in Malaysia

Since achieving independence from British rule on August 31st 1957, Malaysia is a country that practices Parliamentary Democracy and Constitutional Monarchy. Therefore, the structure of government in Malaysia is very similar to what is practised in Great Britain. Malaysia was formerly known the Malay Peninsula was a former British Colony and prior to its independence a commission, the Reid Commission was appointed to draft the Federal Constitution based on the system of parliamentary democracy as practised in Great Britain. The Federal Constitution divides the structure of government to three different bodies which are the Legislature, the Executive, and the Judiciary.

The Parliament, is the national legislature of Malaysia, based on the Westminster system in Great Britain. The bicameral parliament consists of the Dewan Rakyat or the House of Representatives and the Dewan Negara or the Senate. The Yang di-Pertuan Agong (Supreme Head) as the Head of State is the third component of Parliament.

As the ultimate legislative body in Malaysia, the Parliament is responsible for passing, amending and repealing acts of law. It is subordinate to the Head of State, the Yang di-Pertuan Agong, under Article 39 of the Constitution.

The Dewan Rakyat consists of 222 members of Parliament elected from single-member constituencies drawn based on population in a general election using the first-past-the-post system. A general election is held every five years or when Parliament is dissolved by the Yang di-Pertuan Agong on the advice of the Prime Minister. Suffrage is given to registered voters 21 years and above, but not compulsory. When a member of Parliament dies, resigns or become disqualified to hold a seat, a by-election is held in his constituency unless the tenure for the current Parliament is less than two years, where the seat is simply left vacant until the next general election.

The Dewan Negara consists of 70 members (Senators); 26 are elected by the 13 state assemblies (2 senators per state), 4 are appointed by the Yang di-Pertuan Agong to represent the 3 federal territories;2 for Kuala Lumpur, 1 each for Putrajaya and Labuan. Another 40 members are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. Senators must be 30 years or above, and are appointed to a three-year term for two terms maximum only. The dissolution of the Parliament does not affect the Dewan Negara.

Members of Parliament are permitted to speak on any subject without fear of censure outside Parliament; the only body that can censure an MP is the House Committee of Privileges. Parliamentary immunity takes effect from the moment a member of Parliament is sworn in, and only applies when that member has the floor; it does not apply to statements made outside the House. An exception to this rule are portions of the constitution related to the social contract, such as the Articles governing citizenship, Bumiputra (Malays and indigenous people) priorities, the Malay language, etc. - all public questioning of these provisions is illegal under the 1971 amendments to the Sedition Act, which Parliament passed in the wake of the 1969 May 13 racial riots.[6] Members of Parliament are also forbidden from criticising the Yang di-Pertuan Agong and judges. [7] Parliamentary immunity and other such privileges are set out by Article 63 of the Constitution; as such, the specific exceptions to such immunity had to be included in the Constitution by amendment after the May 13 incident.

The Executive, comprising the Prime Minister and his Cabinet, is drawn from the members of Parliament and is responsible to the Parliament. The Yang di-Pertuan Agong appoints the Prime Minister, who is the Head of Government, constitutionally subordinant to His Royal Highness, from the Dewan Rakyat. In practice, the Prime Minister shall be the one who commands the confidence of the majority of the Dewan Rakyat. The Prime Minister then submits a list containing the names of members of his Cabinet, who will then be appointed as Ministers by the Yang di-Pertuan Agong. Members of the Cabinet must also be members of Parliament, usually from the Dewan Rakyat. The Cabinet formulates government policy and drafts bills, meeting in private. The members must accept "collective responsibility" for the decisions the Cabinet makes, even if some members disagree with it; if they do not wish to be held responsible for Cabinet decisions, they must resign. Although the Constitution makes no provision for it, there is also a Deputy Prime Minister, who is the de facto successor of the Prime Minister should he dies, resigns or be otherwise incapacitated. If the Prime Minister loses the confidence of the Dewan Rakyat, whether by losing a no-confidence vote or by failing to pass a budget, he must either submit his resignation to the Yang di-Pertuan Agong, or ask the His Royal Highness to dissolve the Parliament. If His Royal Highness refuses to dissolve the Parliament (one of the Yang di-Pertuan Agong discretionary powers), the Cabinet must resign and the Yang di-Pertuan Agong will appoint a new Prime Minister.

Although the judiciary is constitutionally an independent branch of the government, after the 1988 constitutional crisis, the judiciary was made subject to Parliament; judicial powers are held by Parliament, and vested by it in the courts, unlike before, being directly held by the judiciary. The Attorney-General was also conferred the power to instruct the courts on what cases to hear, where they would be heard, and whether to discontinue a particular case.

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